In this conference Q&A, we address how employers could respond if they suspect the use of marijuana in the workplace.

In partnership with Stringer LLP, First Reference Inc. recently hosted the 19th Annual Employment Law Conference on June 12, 2018, where we discussed the latest legal developments on topics including the legalization of cannabis in Canada on October 17, 2018. Most employers are concerned about how legalization of recreational cannabis will impact the workplace.

We received a large number of questions from conference attendees during the Q&A session. Though we could not answer them all during the conference, the First Reference Blog will be updated weekly to provide further clarity on this year’s hot topics based on the questions we received.

Q:

How do you approach an employee if you suspect use of marijuana and the employee has not advised HR that it was for medicinal purposes?

A:

With medicinal marijuana already being prescribed by doctors and the upcoming legalization of recreational marijuana just around the corner, this question addresses a real concern shared by many employers across Canada.

While employers have the right to restrict the use and possession of marijuana in their workplace to prevent impairment and other health and safety issues, they are equally bound by the duty to accommodate to the point of undue hardship employees who use marijuana for medical purposes. This also means the individual who is registered as a client under the Marijuana for Medical Purposes Regulations to use marijuana must show that they are authorized to possess the marijuana for medical purposes within the strict limits set out in the Regulations.

First and foremost, employers need to remember that the reason the employee is authorized to possess medical marijuana is because the employee suffers from a medical condition. This means that a healthcare practitioner has prescribed medical marijuana to the patient because the medical condition is serious enough for the healthcare practitioner to feel it necessary to complete a medical document for the purposes of the Regulations. Once the employer is informed of this medical condition and the use of marijuana as a prescription drug, all the typical principles regarding accommodation of a disability pursuant to human rights legislation apply. The employee should be treated like any other employee who is taking prescription medication for a medical condition.

However, if an employer suspects that an employee is using marijuana and has not disclosed it, there has to be a valid reason or impact on the workplace that would require you to bring this into question. Is the use on the employer’s premises during work hours or during the employee’s break or lunch hour? Is the employee showing signs of impairment? Although employers cannot regulate what activities their employees partake in outside of the workplace, it does not mean that individuals have the right to be impaired in public places, including the workplace.

There is no blanket answer on how to approach or respond to an employee who is suspected of marijuana use in the workplace. Each situation must be assessed on a case-by-case basis. It is important to keep an open mind, which means in this situation that the absence of a licence granting the employee the right to possess medical marijuana for medical purposes in the HR file does not rule out the possibility that the employee is using marijuana for medical purposes that would trigger the employer’s duty to accommodate a disability to the point of undue hardship.

Proactive approach

First, employers are encouraged to be proactive when dealing with marijuana (medical or recreational) use in the workplace. Employers should conduct a hazard and job-safety assessment to determine the safety-sensitive nature of the position and the company as a whole. Employers are able to expect their employees to show up clear-headed, not impaired and able to perform their jobs. With this information in mind, employers can balance employees’ rights and the need to protect the workplace and meet health and safety obligations by updating or establishing a workplace policy to:

• place restrictions on the smoking of tobacco in the workplace that would apply equally to the smoking of marijuana.
• subject to medical conditions, restrict the use and possession of recreational marijuana in the workplace or at company sponsored events, to prevent its possible negative consequences such as impairment.
• prohibit all employees (even the ones who use marijuana for medical purposes) from attending work while under the influence or impaired.
• subject to medical conditions, outline progressive disciplinary action where an employee fails to comply with the policy or to disclose the use of medical marijuana.

Moreover, the policy must adhere to existing human rights law and provide an accommodation framework by which employees can come forward regarding addiction to marijuana or a medicinal marijuana prescription. Most importantly, the policy must be communicated to all employees, applied consistently, monitored and reviewed if need be at least once a year. Also, management should be trained on how to identify signs of impairment and how to respond appropriately.

Reactive approach

Second, employers should be careful when reacting to an employee who is suspected to be under the influence of marijuana.

Employers and supervisors should be able to identify signs of impairment, and know how to respond to situations involving the use of a substance whether it is from recreational use, dependence or therapeutic use. They should be familiar with available resources and supports (e.g., Employee Assistance Programs, or agencies within the local community), and should help employees seek treatment as necessary.

It is suggested that the employer observe the employee alleged to be impaired or under the influence right away and preferably with another party and document what is observed. After reviewing the applicable policy and procedures, the employer should meet with the employee immediately and in confidence, preferably with an HR manager or other designated person present, to ensure the safety of the employee and fellow co-workers, to investigate and to determine if there is a violation of company policy.

Employers need to be careful when responding to substance use in the workplace to never diagnose or assume. Therefore, it is important to ask the right questions, provide the opportunity for response and assess the situation based on the facts. If the company is engaged in safety-sensitive work, a drug test may be warranted. Remember that in Canada, a drug test must be used “only in limited circumstances” and put in place after alternative, less intrusive methods for detecting impairment and increasing workplace safety have been explored. If your organization is engaged in safety-sensitive work, then implementing a drug and alcohol testing policy could be justifiable.

If during the investigation, the employee discloses a medical prescription for marijuana use, an addiction to marijuana or shows signs of addiction to marijuana, the employer’s duty to accommodate is triggered. Nonetheless, this does not equate to a license to be impaired at work. The employer could remove the employee from work, especially from performing potentially hazardous work, provide modified duties or require a medical assessment.

But even in the absence of this trigger, the employer’s disciplinary measures are limited to using progressive steps. According to the Ontario Human Rights Commission, an employer who disciplines or dismisses an employee without using progressive discipline or attempts to accommodate may be found to have discriminated against the employee on the basis of a disability. Therefore, if disciplinary action is required, employers should follow the company’s policies on progressive discipline to avoid a potential human rights claim.

The employer should always complete an incident report. As well, every discussion should be accompanied by an incident report and the employer should also follow through and follow up on actions taken and monitor the situation. It is important to ensure a quick resolution.

Given the changing legal landscape and the complexity and legal risk of confronting an employee who is suspected of using marijuana in the workplace, employers are encouraged to consult the Human Resources Advisor Ontario, Atlantic or Western edition for a more in-depth discussion on compliance and best practices on the topics of recreational and medicinal marijuana in the workplace.

Please Note: This article is prepared for information purposes only; it is not legal advice. Consult a lawyer before acting on it or to obtain legal advice or a legal opinion.